Ali Saleh Kahlah al-Marri

February 27, 2009

The Brennan Center for Justice is representing Ali Saleh Kahlah al-Marri in two cases involving the U.S. government. Al-Marri v. Spagone (formerly Al-Marri v. Pucciarelli), a habeas corpus action, challenges the Executive's claim to unchecked authority to indefinitely detain a legal resident in the United States without any charge of wrongdoing. In Al-Marri v. Gates, the Brennan Center is contesting Mr. al-Marri's treatment and conditions of confinement since he was declared an "enemy combatant" in 2003.

Al-Marri v. Spagone

In Brief – Mr. al-Marri, a citizen of Qatar and legal U.S. resident, was arrested in Peoria, Illinois, in 2001 as a material witness in the FBI's investigation of 9/11. In 2002, he was charged with credit card fraud and other criminal offenses. Shortly before his criminal trial commenced in June 2003, President Bush declared him an "enemy combatant" and moved him to a Navy Brig in South Carolina, where the government has subjected him to torture and other cruel treatment. Over five years later, Mr. al-Marri still remains in solitary confinement without charge.

Question Presented – Does the Executive have legal authority to detain a legal resident arrested in the United States without charge by declaring him an "enemy combatant?" This case challenged President Bush’s assertion of unchecked executive detention power over all individuals in the United States.

Procedural History – Counsel for Mr. al-Marri filed for certiorari review in the Supreme Court of the United States following the Forth Circuit Court en bancdecision on July 15, 2008. The U.S. Supreme Court granted Mr. al-Marri certiorari review on December 5, 2008. The Petitioner's brief was filed on January 21, 2009. The following day, Preisdent Obama issued an executive memorandum to review the status of Mr. al-Marri's detention. In an abrupt change in February 2009, the Obama Department of Justice decided to bring charges against Mr. al-Marri in the criminal court system, thus rendering the habeas corpus action moot.

Additional Detail – For many years, Ali Saleh Kahlah al-Marri was the only person detained as an “enemy combatant” in the United States. Mr. al-Marri, a citizen of Qatar and a legal U.S. resident, was imprisoned without a trial and due process since he was arrested in Peoria, Illinois, in December 2001. Mr. al-Marri came to the United States with his wife and five children to obtain a masters degree at Bradley University in Peoria, Illinois. After he was arrested, he was charged with credit card fraud and other criminal offenses. Mr. al-Marri asserted his innocence and prepared to contest the charges at trial. But, in June 2003, shortly before his trial was scheduled to commence, and on the eve of a hearing to suppress illegally seized evidence, President Bush signed a one-page order declaring Mr. al-Marri an “enemy combatant” and directing his transfer to a Navy Brig in South Carolina, where he was held incommunicado and interrogated for more than a year. At the Brig, Mr. al-Marri was subjected to torture and other cruel, inhuman, and degrading treatment. Until his transfer to the criminal justice system, he remained in solitary confinement at the Brig under severe restrictions, not seeing his family during these six years, and speaking to them only a couple of times.

Although Mr. al-Marri was arrested at his home in the middle of the United States, the Executive claims the power to hold him indefinitely as an “enemy combatant” based upon second- and third-hand allegations that he is an “al Qaeda sleeper agent.” No evidence was presented to sustain these allegations, many of which appeared to have been gained through torture. Further, President Bush asserted that the Military Commissions Act of 2006 stripped the federal courts of their historic habeas corpus review over his challenge to his detention. According to this argument, any of the millions of immigrants in the United States could be swept off the streets and locked in a military jail without access to the courts.

Mr. al-Marri’s case challenged the president’s assertion of unchecked Executive detention power over all individuals in the United States. In the Bush administration’s view, the president has the authority to arrest and detain individuals without charge, without due process, and without meaningful judicial review. Congress, however, never authorized such unchecked executive detention authority and the Constitution squarely prohibits it. A more detailed description of Mr. al-Marri’s case and the important issues it raises can be found in Mr. al-Marri’s brief on appeal.

The Brennan Center has long argued that America’s criminal justice system can and should handle cases in which individuals are accused of terrorism. (See Secrecy Problem in Terrorism Trials.) As the Brennan Center has explained, working within our established constitutional framework—a framework that dates to the Nation’s founding more than 200 years ago—is the best way to protect both liberty and national security.

On June 11, 2007, in a two to one ruling by the Fourth Circuit Court of Appeals, the Court held that the Executive lacked legal authority to detain Mr. al-Marri without charge; all three judges ruled that Mr. al-Marri was entitled to traditional habeas corpus protections, giving him the right to challenge his detainment in a U.S. Court.

On August 22, 2007, the Fourth Circuit Court of Appeals, granted the government's petition for rehearing en banc. The case was argued by Jonathan Hafetz before the full Fourth Circuit on October 31, 2007. On July 15, 2008, the Fourth Cicuirt handed down its decision.

In response to the Fourth Circuit's decision, counsel for Mr. al-Marri filed a petition for certiorari in the Supreme Court on September 19, 2008. The U.S. Supreme Court granted Mr. al-Marri certiorari review on December 5, 2008. Briefs were filed on January 21, 2009. Numerous amici, or friends of the court, submitted briefs to the Supreme Court in support of al-Marri’s challenge, including former senior Justice Department officials, prominent legal experts from a variety of fields, leading human rights organizations, and top civil rights and immigrant groups.

The following day, Preisdent Obama issued an executive memorandum to review the status of Mr. al-Marri's detention. The Government's reply brief will be due on March 23, 2009. Oral arguments are scheduled for April 27, 2009. In an abrupt change in February 2009, the Obama Department of Justice decided to bring charges against Mr. al-Marri in the criminal court system, thus rendering the habeas corpus action moot.

Al-Marri v. Gates

In Brief – Mr. al-Marri was placed in solitary confinement upon his transfer to the U.S. Naval Brig in South Carolina, in June 2003, and forced to endure painful stress positions, extreme sensory deprivation, as well as threats of violence and death while being detained incommunicado for 16 months. In August 2005, Mr. al-Marri filed this lawsuit to challenge his unlawful and unconstitutional conditions of confinement and mistreatment.

Procedural History – In the course of this lawsuit, the government unlawfully destroyed videotapes and other important electronic and paper records documenting the military's interrogation and treatment of Mr. al-Marri. To prevent futher destruction of the 50+ interrogation recordings and other evidence (see New York Times article on tape destruction), attorneys for Mr. al-Marri filed a motion with the Court to prevent further destruction of evidence. That motion is still pending.

In March 2008, Mr. al-Marri requested an interim order addressing his prolonged isolation, which irreversibly harmed his mental health, denying him meaningful contact with his family, and preventing him from participating meaningfully in his defense. In April 2008, a magistrate judge recommended denial of the motion. Mr. al-Marri appealed to a district judge. In March 2009, the action was dismissed.